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Legal Reasoning and Judicial Reasoning of the CJEU, Czech CC and ECtHR
2021.11.18. @ 17:00 - 18:30
The webinar by doc. JUDr. David Sehnálek, Ph.D., was conducted online as a part of the Autumn School of Global Legal Skills. The Autumn School is an intensive program focusing on legal reasoning, legal interpretation and argumentation, work with literature, case law, and professional writing. It is organized by the Faculty of Masaryk University in cooperation with the European Academy of Legal Theory, the University of Vienna, and the Ferenc Mádl Institute of Comparative Law. Experts on legal theory from the USA, Austria, Sweden, Slovenia, and Czechia actively participate in this event.
The topic of the webinar by doc. JUDr. David Sehnálek, Ph.D. is Legal Reasoning and Judicial Reasoning of the CJEU, Czech CC, and ECtHR. The webinar is an outcome of the research conducted within the Central European Professors’ Network 2021 coordinated by the Ferenc Mádl Institute of Comparative Law. The lecture was delivered on November 18, 2021.
Doc. Sehnálek’s lecture includes two main parts. He first focuses on the theory of legal reasoning from a practical perspective. Therefore, the first part is general and presents how to formulate a submission to the court in a good and convincing way to reach the desired judicial decision. Thus, the perspective of one of the parties to the court proceedings is followed.
Within this first part, doc. Sehnálek explains that lawyers including judges often aim in their writing either to predict something or to persuade someone. Both these basic types of writing require a certain ability to explain legal rules and concepts. Whereas predictive writing is characterized by a high degree of objectivity, persuasive writing may reflect the subjective position of the writer, the aim that he tries to achieve, as well as the position and interests of the addressee of the text on the issue / legal problem. Both need to be based on sound reasoning and well evidence. Both have to take into account possible alternatives and risks. Nevertheless, the level to which they are revealed may differ significantly.
The problem in the Czech Republic is that the Czech students are taught well in predictive writing. Nevertheless, they lack the ability and knowledge of good persuasive writing. In addition to that, there is only a little general awareness of the approaches and methods typically used by various courts in legal writing and reasoning, as well as how these approaches differ at either the domestic or the European level. The style of judicial reasoning of common domestic courts, the Constitutional Court, the Court of Justice, and the European Court of Human Rights significantly differ.
In the next part of the lecture, the speaker focuses on deductive reasoning, representing the prevailing legal and judicial reasoning style. This method represents rule-based reasoning where general premises are applied to specific facts of the case. In Europe, the deductive method is mainly used in reasoning from statutes. Nevertheless, in the case of constitutional courts, the Court of Justice, and the European Court of Human Rights, the norm in constitutions, the European convention, and primary EU law are often either too broad and general or completely missing. Thus, the role of case law is significant and has to be reflected by these courts in a manner similar to precedents and stare decisis legal doctrine known to the US law.
Doc. Sehnálek also points out the most common mistakes. Often, either the major premise or the minor premise is missing, making the text and the reasoning incomplete and thus ineffective.
The next part of the lecture is dedicated to the structure of legal reasoning. The speaker focuses on IRAC methodology (Issue, Rule, Analysis, and Conclusion) and explains these sections and their meaning. The method of argumentation is further demonstrated using the case-law of the Constitutional Court of the Czech Republic and the case-law of the Court of Justice.
Explanation of the deductive method of reasoning is followed by the part of the lecture dedicated to inductive reasoning. This is a method that involves reasoning from specific examples to propose a general rule. This is something that is not typical for European legal practice. On the contrary, constitutional courts, the Court of Justice, and the European Court of Human Rights use this method quite regularly. As a single case usually does not set every legal rule for a given area of the law, courts must deploy a process called rule synthesis. Doc. Sehnálek demonstrates this process using the case-law of the Court of Justice in which this court interpreted the article 20 TFEU and established some rights for static EU citizens and their family members. In addition to that, the same case law was also used to describe the possibilities and limits of analogies in law and judicial reasoning.
In the second part of the lecture, doc. Sehnálek analysis the judicial reasoning of the Czech Constitutional Court, the Court of Justice, and the European Court of Human Rights. Judges regularly have to clarify and specify the rule (the R part in IRAC) thru the process of interpretation. Doc. Sehnálek used the methodology by Prof. Dr. Zoltán J. Tóth developed for the research within the Central European Professors’ Network 2021 to identify the most common patterns typical for the work of the abovementioned courts. Thus, the style of judicial reasoning is compared and the emphasis is put on the usage of various methods of interpretation.
Doc. Sehnálek points out, that the Constitutional Court of the Czech Republic uses the grammatical method of interpretation only to a limited extent. Unlike in cases related to state organization issues, this method is basically only a marginal and a starting method. The general approach to fundamental rights regulated by the Charter of fundamental rights and freedoms is that the Constitutional Court simply and plainly notes the existence of such a right and the possibility of its impairment in the case at hand. The contents of the right are then clarified using other methods of interpretation. He also points out one difference in the use of this method by the Constitutional Court on the side and the Court of Justice, and the European Court of Human Rights on the other side as the European convention as well as EU law is subject to the autonomous interpretation. Thus the words and terms used by this convention or by the EU law do not have to have a similar meaning as similar terms used by the Czech law.
Both the Court of Justice, and the European Court of Human Rights have to do additional steps which is usually not necessary in the case of domestic courts when interpreting the national law. These two courts should compare all language versions in order to identify the correct meaning of the text.
Logical arguments have an auxiliary significance in the interpretation of the law by the Constitutional Court of the Czech Republic and do not belong among arguments commonly used by the Court. The same is true in the case of the Court of Justice, and the European Court of Human Rights.
The use of domestic systemic arguments is usual in cases where the Constitutional Court of the Czech Republic infers a certain conclusion on the basis of a combination of several provisions of the Constitution and of the Charter. This is typical for Art. 1 (2) of the Constitution, according to which the Czech Republic is to observe its international commitments. This provision is often used in combination with other provisions, especially of the Charter. This is how interpretation is found that conforms either to international or to decisions of international courts. However, this is not a matter of direct determination of the contents of one provision on the basis of another. The logic is that the second provision opens the door for reflecting an external source (typically a European convention), which then, in turn, influences the interpretation of the first provision.
A prevalent method of interpretation for all three courts is the interpretation based on the past case law. Doc. Sehnálek represents the primary modus operandi of these courts. Almost all the rulings of the Constitutional Court comprise references to its previous case law. At the same time, a snowball effect is apparent in the Constitutional Court’s decision-making. The conclusions of its prior decisions are repeated in new decisions, which are added to the original ones and later quoted together. This ultimately creates the impression of a clearly and convincingly established law.
Judgments of the Constitutional Court, as well as the judgments of the Court of Justice, typically lack any detailed analysis of facts in relation to the rule based on which the decision was made. In substance, both these courts merely constantly repeat their general conclusions until they create quite a convincing impression of a precedent
External systemic and comparative law arguments are essential in the reasoning of the Constitutional Court. What is noteworthy is the way the Constitutional Court works with the text of international treaties in general and specifically with the wording of the European Convention. In most decisions, the Charter and the rights it protects were interpreted in the context of the European Convention and other international treaties. Even if the wording differs, these differences are overlooked, and there is a tendency to interpret the same rights identically. The Court of Justice works similarly with the European convention.
For the Constitutional Court, it is also typical to reflect the decisions of other constitutional courts. The position of the European Court of Human Rights case law is fully comparable to the prior case law of the Constitutional Court. The European Court of Human Rights case law is not questioned; on the contrary, it is adopted without further considerations. In addition to that, the subsidiary nature of the European Court of Human Rights’ work is overlooked, as is the fact that its decisions lack effects erga omnes.
Comparative interpretation is a very frequent method of interpreting the Constitutional Court’s case law. It must be emphasized, however, that comparative arguments, as used by the Constitutional Court have nothing to do with comparison as a scientific method. These are two completely different categories. Indeed, comparison as carried out by the Constitutional Court never goes beyond a mere statement – the situation in another country is such and such, similar/the same as here.
Quite frequent in the case-law of the Constitutional Court are according to doc. Sehnálek arguments based on jurisprudence. Its decisions often refer to publications authored or co-authored by one of its justices or those written by their colleagues or friends. So the selection can hardly be considered objective. On the contrary, both the European Court of Human Rights and the Court of Justice never refer to scientific literature.
The European Court of Human Rights differs from the other two courts as it uses the doctrine of margin of appreciation. The European Court of Human Rights and Constitutional Court have in common their subsidiary role in the protection of human rights.
The video of the event can be viewed below